JUDGMENT
Keshote, J.
1. Petitioner Kamal, a Safai Karamchari in the Municipal Board, Jhalawar (hereinafter shall be referred to as “the Board”), has filed this writ petition under Article 226 of the Constitution of India and praying for quashing and setting aside the order dated 18th August, 1993 (Annexure-10) whereby the services of respondent No. 3 Rajesh Gupta have been regularised on the post of Driver with effect from 18.8.1993.
2. The facts of the case are that the petitioner was initially appointed on the post of Safai Karamchari on daily wages. Vide order dated 8.2.1982 (Annex.l) he was given regular pay scale by appointing him on temporary basis for a period of two years as Safai Karamchari. His services were later on confirmed by the Board. The petitioner knows driving and holds a valid driving licence issued on 4th of July, 1983 by the Transport Authority for driving light motor vehicle, transport vehicle and tractor. The petitioner alleged that the Board has taken from him from time to time the work of driving tractor. His work as a driver was highly appreciated by his superiors and for this he has produced a certificate issued by the Executive Officer of the Board in his favour.
3. The respondent No. 2 was appointed on 8.5.1991 as Driver on daily wages basis. It is the case of the petitioner that there was a direction by the Director, Local Bodies, Jaipur under order dated 16.12.1991 to dispense with the services of those employees who were appointed after 26.4.1989 but still the respondent No. 3 was allowed to continue to work. It is stated that the State Government imposed a ban upon any kind of appointment in the Board vide order dated 4.4.1990 and, thus the appoint-ment’given to respondent No. 3 is illegal. It is the grievance of the petitioner that he is qualified for the post of Driver and he being the employee of the Board should have been given promotion of the post of Driver.
4. In the year 1988 a vacant post of Driver was available in the Board and the petitioner submitted his application on 22.12.1988 for appointing him on that post, in the year 1990-91 one post of Driver was sanctioned and the petitioner made a request to the Chairman of the Board to appoint him on that post. Instead of appointing the petitioner, the Board under its order dated 18.8.1993 regularised the services of the respondent No. 3 on the post of Driver, who was working on daily wages basis. As pe the case of the petitioner, this has been done ignoring the claim of the petitioner for appointment on the post of Driver. The petitioner gave a notice for demand of justice before filing the present petition; that notice was replied by the Board stating that the petitioner was appointed on the post of Safai Karamchari and the post of Driver was sanctioned in that budged 1990-91 and respondent No. 3 was appointed as fire brigade driver and no post of Driver was vacant in the Board. It is also denied that the petitioner was working as a Driver.
5. It has next been submitted that the respondent No.3 was qualified for appointment as a fire brigade driver whereas the petitioner was not possessing the requisite qualifications for the post. There is no provision for promotion to the post of Driver from the post which the petitioner holds.
6. After receipt or the reply to the notice for demand of justice, the petitioner filed the present petition.
7. Reply to the petition has been filed both by respondent No. 1 as well as the respondent No.3.
8. From the reply of the respondents I find that there first defence is that the petitioner was not having the requisite qualifications for the post of fire brigade driver. In the year 1990-91 the post of fire brigade driver was sanctioned arid as the respondent No. 3 was possessing the requisite qualification for this post he accordingly was given the appointment. There is no provision for promotion to the post of fire brigade driver
from the post of Safai Karamchari. From the reply filed by the respondent No. 3 one thing is clear that reguiarisalion of the services of respondent No.3 on the post of fire brigade driver was not made in accordance with the recruitment Rules. Not only this no selection process was adopted.
9. Learned counsel for the petitioner raised following contentions in support of his petition:- (i) The appointment of respondent No, 3 on daily wages itself was bad as there was total ban on appointments in the Board; (ii) as his initial appointmenl was bad, no question does arise of ragularisation of his services as a fire brigade driver; (iii) the petitioner work on the post of Driver; (iv) he possessed the driving licence and, therefore, he should have been given appointment on the post of Driver; (v) Ihe respondent No. 3 was much junior to the petitioner and ignoring the claim of the senior the junior has been promoted/appointed on the post of Driver; (vi) the petitioner is a member of scheduled caste being ‘Harijan’ and not a single post is reserved for this category in the Board; (vii) the Board while appointing the respondent No. 3 on the post of Driver has not followed the procedure for direct recruitment of procedure prescribed for recruitment by promotion and thus the appointment of respondent No. 3 is bad.
10. Shri K.N. Gupta, learned counsel for the respondents, in contra submitted that the petitioner does not possess the requisite qualification for the post of fire brigade driver and his claim for this post is wholly untenable. It has next been contended that otherwise also the channel of promotion is not provided to the post of fire brigade driver from the post of Safai Karamchari. The respondent No.3 was appointed on daily wages against a sanctioned post and taking into consideration his satisfactory services his services were regularised to which no exception can be made. Lastly it is contended that when the petitioner was not eligible for the post, this petition is not maintainable.
11. Nobody is present on behalf of Ihe respondent No.3.
12. I have given my thoughtful consideration to the rival contentions made by the learned counsel appearing on behalf of the respective parties.
13. The recruitment and other service conditions of the subordinate and ministerial services of the Municipalities in the State are regulated under the Rajasthan Municipal (Subordinate & Ministerial Services) Rules, 1963 (hereinafter shall be referred to as “the Rules of 1963”). In Rule 6 of the Rules of 1963 the list of posts which are in the subordinate services is given. These posts are catalogue under different heads i.e. with reference to Ihe Department. From Rule 6 of the Rules of 1963 it is clear that the post of Driver is a subordinate service. In Departments of Municipality post of Driver are there. In Public Works Department there is post of Road Roller Driver, in Motor Garage there is a post of Driver (Motor Vehicles), in Gardens and Parks Department there is post of Driver (Pumps)/Pump Operator, in Fire Fighting Department there is a post of Driver (Fire); in Water Works Department there is a post of Pump Diver/Operator Grade I & Grade II. In the Schedule appended to the Rules of 1963 the qualification prescribed for direct recruitment for the post of Driver (Motor Vehicle) in Motor Garage is that a person should have possessed driving licence under the Motor Vehicle Act and promotion is also provided for the post of Driver (MV) from the post of Cleaner. The qualification prescribed for the post of Driver (Fire) in Fire Fighting Department is that a person should have possessed driving licence under the Motor Vehicle Act. After appointment, the person has to undergo usual training. Having a glance over the qualification prescribed for appointment/promotion on the post of Driver (Motor Vehicles) in Motor Garage, and Driver (Fire) in Fire Fighting Department, it is apparent that the qualifications for direct recruitment are identical. Under the Rules of 1963 it no where contemplates that for Driver (Fire) a candidate must have possessed the particular category of licence of motor driving. Under the Rules of 1963, for both posts i.e. Driver (Motor Vehicles) in Motor Garage and Driver (Fire) in Fire Fighting Department, the qualifications are that a person must have possessed driving
licence under the Motor Vehicle Act. Learned counsel for the Board has failed to point out any provision from the Rules of 1963 in support of his argument that for appointment to the post of Driver (Fire) a person should have possessed particular category of driving licence.Where a particular category of driving licence is required to be possessed by a person concerned for appointment on a particular post of Driver it is made clear and for this the reference may have to the entry No. 7 in the Public Works Department of the post of Road Roller Driver. For this post a person has to possess Road Roller Driving Licence. In view of this posilion of the Rules as stand today ad nothing contrary has been brought to the notice of the court by the counsel appearing for the Board, this defence taken by the Board that the petitioner, who is admittedly possessing-the Driving Licence under the Motor Vehicles Act, is not qualified for the post of Driver (Fire), is wholly untenable and unjustified. The petitioner is holding the Driving Licence under the Motor Vehicle Act of light vehicle/transport vehicle. Having gone through the copy of driving licence produced by the petitioner on record I find that the licences are issued by the Transport Department for the following categories of the Vehicles:- (a) Motor Cycle/Scooter; (b) Invalid Carriage; (c) Light Motor/Transport Vehicle; (d) Medium Motor/Transport Vehicle; (e) Heavy Motor/Transport Vehicle; (f) Road Rollers; (g) A Motor Vehicle here under described; (h) Tractor. A copy of the licences issued in favour of respondent No. 3 is there on record as Annex. Rule 3/2 and therefrom I find that he is having the licence to drive a light motor vehicle/transport vehicle and heavy motor vehicle. It is nowhere provided in the Rules of 1963 that for driving a fire brigade a special category of licence is required. If we go by the Rules of 1963, there it is nowhere contemplated that for driving of fire brigade a person is required to hold a heavy motor vehicle licence. For both the posts i.e. Driver (Motor Vehicles) and Driver (Fire) a person who holds drivering licence under Ihe Motor Vehicle Act is eligible for appointment. Until the Rules of 1963 are amended, the defences taken by the respondents No.1 & 3 do not stand to any merit. It is not in dispute that in the year 1990-91 the post of Jriver (Fire) was sanctioned. From the Rules of 1963 it is clear that no channel of promotion is provided to the post of Driver (Fire) from the category of the post of Safai Karamchari of Class IV. In absence of any such provision in the Rules of 1963 the claim made by the petitioner for promotion to this post cannot be accepted.
14. The post of Driver (Fire) is to be filled in by direct recruitment under the Rules of 1963. It is not the case of the respondent Board or respondent No. 3 that the applications were invited for this post from open market or names were sponsored by the Employment Exchange and after following procedure for direct recruitment as laid down under the Rules of 1963 the respondent No. 3 was appointed on (he post of Driver (Fire). It is a case where this exercise has not been undertaken before appointing the respondent No. 3 on the post. It is not the case of the Board that the candidature of the petitioner for the post of Driver (Fire) by direct recruitment has been rejected on the ground that he does not possess the requisite qualification for the post. The petitioner and many other persons holding the licence of driving motor vehicle were eligible for this post even where go by the Board’s own case. The petitioner and those persons have a fundamental right of consideration for appointment on the post which right has been denied to them by none other than a Constitutional authority.
15. It is a case where the respondent No. 3 has been appointed on the post by back door entry. An appointment by back door entry is, possible only where some of’ wellwisher, supporter or God father of the appointee is there to open the door for him. The respondent No. 3 has been favoured in the matter of appointment on the post of Driver (Fire). The name of the person who favoured him is not disclosed by either of the parties but from the facts of this case it can legitimately be inferred that somebody was there is the Board to support and managed the appointment of the respondent No.3 on this post. This is a clear case of appointment of the respondent No. 3 on the post of Driver (Fire) de hors the Rules of 1963 as well as constitutional provisions i.e. Article 16 of the Constitution of India.
16. The Board is a constitutional body and it is expected of it to adhere to the statutory rules and constitutional provisions. If it itself violates the statutory rules and constitutional provisions, it is a very serious matter. The daily wages appointments, in fact, have become a condute pipe for regular appointment. This is what clearly born out from the facts of this case. From document Annex.10 and it is also not in dispute that the respondent No. 3 was initially inducted in the service of the Board as a Driver (Fire) on daily wages vide order dated 8.5.1991. He was allowed to continue on this post on daily wages and later on the Board in its meeting held on 17.5.1993 decided to regularise his services and in pursuance thereof the order (Annex.10) is passed. Annex-10 reads as under:-
dk;kZy; uxj ikfydk >kykokM+
ekad % uk- ik- >kyk- @ 93 fnukad% 18-8-93
dk;kZy; vkns’k
cksMZ dh lHkh fnukad 17-8093 dh
vuqikyuk esa ikfydk esa nSfud osru ij dk;Zjr fuEu deZpkfj;ksa dks 240 fnol dk;Z
dh dkykof/kiw.kZ gksus ij ikfydk esa fjDr inksa ij fnukad 18-8-93 ls lsok fu;fer
dh tkdj fu;fer osru J`a[kyk nh tkrh gSA
–
deZpkjh dk uke
in
osru J`a[kyk
1-
Jh jkts’k xqIrk iq= Jh
nkSyrjke]
MkbZoj
950&1640
2-
Jh vCnqy jghe iq= v- ‘kdwj
ukdsnkj
950&1640
3-
ekSgEn bnjhl iq- v- oghn
ukdkxkMZ
750&940
4-
lykmnhu iq= Qgheqnhu
ukdkxkMZ
750&940
5-
nhun;ky ‘kkeZ iq= c`teksgu ‘kekZ
pijklh
750&950
6-
uUn yky jSxj iq= jkeukFk
Qk;j gSYij
750&940
7-
ekaxhyky d’;i iq= /kUuk yky
Qk;j gSYij
750&940
8-
eksgEen mLeku iq= Hkoj [kka
Qk;j gSYij
750&940
v/;{k
uxjikfydk >kykokM+
17. A bare reading of this order gives out that the services of respondent No. 3, who was appointed on daily wages, have been regularised on the ground of completion of 240 days of service by him in the Board with effect from 18.8.1993. This is nothing but clearly a fraud on the Constitutional provisions as well as the statutory Rules of 1963. By this methodology the constitutional authority has given total goodbye to the constitutional provisions and the Rules of 1963. The Rules of 1963 nowhere provides that if a daily wager completes 240 days of service he acquired a right of regularisation. In case a daily wager/temporary or ad hoc employee completes 240 days of service either on daily wages basis or in the regular pay scale and he is a workman or the employee of the Industry, he cannot be retrenched form services without complying with the provisions of Section 25-F of the Industrial Disputes Act 1947. In case on this propounded theory the daily wages on completion of 240 days of service are regularised, it will open flood gates for corruption, favouratism and nepotism which is already there at a very high rate in the country. It is no more res-integra that even a temporary employee does not acquire a right to hold the post permanently howsoever long he may have continued as a temporary employee. This right may be available to him in accordance with the service rules and not otherwise. The daily wagers cannot be put at higher pedestal than temporary employee. In M.P. Hanloom H.S.V. v. Devendra
Kumar (1), the Apex Court held that a temporary Government servant does not become permanent unless he acquires that capacity by force of any Rule or is declared as permanent servant. Declaration of a daily wager as permanent servant can only be in accordance with the Rules, Regulations or the constitutional provisions. In this case de hors the Rules of 1963 and constitutional provisions a post which was to be filled in by direct recruitment has been filed in by a person who was initially given appointment on daily wages basis. The resolution of the Board as well as the order passed in pursuance thereof regularising the service of respondent No. 3 as a Driver (Fire) is violative of the Rules of 1963 and the provisions of Article 14 and 16 of the Constitution and same cannot be allowed to stand.
18. In the result the writ petition succeeds and same is allowed. The order dated 18.8.1993 whereby the services of respondent No. 3 have been regularised is quashed and set aside. The respondent No. 3 is restrained from working on the post or Driver (Fire). The post of Driver (Fire) is a sanctioned post and the respondent Board is directed to fill in the post in accordance with the Rules of 1963 within a period of three months from the date of receipt of a certified copy of this order which shall be submitted by the petitioner. The petitioner and respondent No. 3 both are free to apply for this post and their applications shall be considered in accordance with law. In case the respondent No.3 has crossed the age limit for applying for the post of Driver (Fire) in pursuance of the advertisement to be issued by the Board, his application may not be rejected only on the ground that he has become overage by now. Compliance of this order is to be reported to the Court.
19. On the question of costs 1 am of the opinion that it is a fit case where the cost has to be awarded to the petitioner against the respondent Board. The petitioner belongs to Scheduled caste. He is a low paid employee. It is very difficult for this class of the employee to has a legal right of free legal aid. But he has not availed of the same. He may not know of his this right or was not made known of the same. Only on this ground he cannot be denied the costs. It is not the case or the respondent Board that the petitioner despite of knowing of his this right chose to engage his own lawyer rather to approach to Rajasthan High Court Legal Aid Service Committee. The counsel for the petitioner states that he has charged. Rs. 5000/- (Rs. five, thousand) for the petitioner in the present matter to provide to him his professional services. Accordingly the respondent Board is directed to pay Rs. 5000/- as costs of this petition to the petitioner.